FPN for skip ramp. Options

[Neil B]

One for some friends and not my area of knowledge so all suggestions welcome.

Couple near retirement refurbing their house and get this, to me, nonsense.

In an area blighted by flytipping, which the council clear fairly promptly but nearly always fail to investigate
and prosecute.
Instead they pick on decent, law abiding residents who were doing the right thing.

Skip was fully licensed and ramp was only in place while, intermittently, in use; not overnight.

Any advice?

Tom and Rose 3 by Neil Black, on Flickr

Tom and Rose 2 by Neil Black, on Flickr

Tom and Rose 3 by Neil Black, on Flickr

Thanks.

This post has been edited by Neil B: Sat, 5 Oct 2019 - 12:05

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[PASTMYBEST]

Depositing infers leaving with the intent to permanently leave it, not IMO using something but do they have a license for the skip

[Neil B]

but do they have a license for the skip

Yes, I said so.

[PASTMYBEST]

but do they have a license for the skip

Yes, I said so.

Then IMO the ramp is part of the skip

[southpaw82]

From their documents I assume they have in mind s 148 of the Highways Act 1980, which says

If, without lawful authority or excuse—
(a) a person deposits on a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, or

(b) a person deposits on any highway that consists of or comprises a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, within 15 feet from the centre of that carriageway, or

(c) a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or

(d) a hawker or other itinerant trader pitches a booth, stall or stand, or encamps, on a highway.

he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.

I don’t know where they’re getting the power to impose a fixed penalty from - though that may become irrelevant if they choose to prosecute. There is a power to impose fixed penalties under the HA but (a) it doesn’t apply to offences under s 148, (b) I’m not convinced it’s in force yet and (c) the offence doesn’t seem to have been specified by the SoS. It’s s 314A if you want to have a look.

[cp8759]

Well the national archives site confirms section 314A is not in force as of 2 October 2019, if there were any outstanding changes the site would say so. In the first instance it might be worth simply writing to the council to point out that there is no statutory power to impose an FPN and see what they say.

If they react by instituting criminal proceedings, I would suggest a request to the CPS to take over and discontinue would be the way to go. Unless a council officer witnessed the defendant placing ramp on the highway, they can't even meet the evidential threshold. Even if the council officer saw someone place the ramp on the highway, they would need to prove that the person in question is the defendant, which would be tricky if the defendant does not appear in person.

It seems to me that they council's thinking is "well the ramp is licensed by X, so we'll issue an FPN to them" but I don't see a court convicting on that basis. For all a court could know a disgruntled neighbour could have put the ramp there himself and then made a complaint to the council.

And that's before we even get to the public interest test, which I also don't think would be met. I take the view that when the council solicitor looks at the case, he'll come to the same conclusion and simply bin it.

[PASTMYBEST]

Well the national archives site confirms section 314A is not in force as of 2 October 2019, if there were any outstanding changes the site would say so. In the first instance it might be worth simply writing to the council to point out that there is no statutory power to impose an FPN and see what they say.

If they react by instituting criminal proceedings, I would suggest a request to the CPS to take over and discontinue would be the way to go. Unless a council officer witnessed the defendant placing ramp on the highway, they can't even meet the evidential threshold. Even if the council officer saw someone place the ramp on the highway, they would need to prove that the person in question is the defendant, which would be tricky if the defendant does not appear in person.

It seems to me that they council's thinking is "well the ramp is licensed by X, so we'll issue an FPN to them" but I don't see a court convicting on that basis. For all a court could know a disgruntled neighbour could have put the ramp there himself and then made a complaint to the council.

And that's before we even get to the public interest test, which I also don't think would be met. I take the view that when the council solicitor looks at the case, he'll come to the same conclusion and simply bin it.

+1

[mickR]

Yet another account of a jumped up wannabe police officer, they should be held to account whenever possible. Clearly no common sense whatso ever. How can the ramp impede and the skip not?
I agree that the ramp forms part of the skip in anycase, Maybe the skip company fitted the ramp ?

[cp8759]

Yet another account of a jumped up wannabe police officer, they should be held to account whenever possible. Clearly no common sense whatso ever. How can the ramp impede and the skip not?

The skip is on the road pursuant to lawful authority, the ramp is not.

I think the real issue is the people in the council back officer that appear to be wannabe prosecutors, but they clearly have little understanding of the burden of evidence or the criminal procedure rules. I put this down to poor training, after all police officers are not trained lawyers but generally speaking they can be trained to a level where, without knowing all the ins and outs of the law, they can gather adequate evidence to ensure a conviction.

[mickR]

Yet another account of a jumped up wannabe police officer, they should be held to account whenever possible. Clearly no common sense whatso ever. How can the ramp impede and the skip not?

The skip is on the road pursuant to lawful authority, the ramp is not.
I think the real issue is the people in the council back officer that appear to be wannabe prosecutors, but they clearly have little understanding of the burden of evidence or the criminal procedure rules. I put this down to poor training, after all police officers are not trained lawyers but generally speaking they can be trained to a level where, without knowing all the ins and outs of the law, they can gather adequate evidence to ensure a conviction.

Are you saying there is a legal definition of a skip that in particular excludes a "wooden" loading ramp?? Some skips are made wifh a ramp. If you are saying only the skip without a ramp is lawful then what about the lights to illuminate at night? They are after all seperate to the skip but attached to it, as is the ramp.
What part have the police had in this?

This post has been edited by mickR: Wed, 2 Oct 2019 - 22:49

[southpaw82]

Are you saying there is a legal definition of a skip that in particular excludes a "wooden ramp”

builder’s skip” means a container designed to be carried on a road vehicle and to be placed on a highway or other land for the storage of builders’ materials, or for the removal and disposal of builders’ rubble, waste, household and other rubbish or earth

Ramps aren’t mentioned. There’s probably some case law on it.

[cp8759]

Are you saying there is a legal definition of a skip that in particular excludes a "wooden" loading ramp?? Some skips are made wifh a ramp. If you are saying only the skip without a ramp is lawful then what about the lights to illuminate at night? They are after all seperate to the skip but attached to it, as is the ramp.
What part have the police had in this?

But the ramp isn't an integral part of the skip, it's just a plank of wood. If the ramp were an integral part of the skip things might be different. I don't think it matters because as I've pointed out, the council is unlikely to be able to prove that the defendant actually placed the ramp on the road.

[Neil B]

Thanks as ever you clever lot.

If I might clarify my understanding --- and please forgive any dumbness along the way.

Normally with FPNs any subsequent summons would be solely for non-payment.
But here that can't happen as the FPN is unlawful in the first place and should be immediately queried.

If a prosecution ensues anyway, it can only be for the actual alleged offence.
There seems to be some pros and cons to defending that? Along with the risk of a larger fine.

Re cp's mention of 'evidential threshold'; it is highly unlikely either of the occupants placed the plank.
Certainly not Mrs H, the recipient of the FPN. More likely, the refurb contractor. I'll check.

Am I understanding so far?

[southpaw82]

Normally with FPNs any subsequent summons would be solely for non-payment.
But here that can't happen as the FPN is unlawful in the first place and should be immediately queried.

An FPN under the Road Traffic Offenders Act 1988 will simply be increased by 50% and registered for enforcement if not paid. Other FPNs (generally) if unpaid will result in prosecution for an offence - not for non-payment.

[cp8759]

Normally with FPNs any subsequent summons would be solely for non-payment.
But here that can't happen as the FPN is unlawful in the first place and should be immediately queried.

No you're mixing up FPNs with ECNs, where the offence prosecuted is non-payment of the ECN. For FPNs it epends on the powers under which the FPN is issued.

Some police issued FPNs, such as non-endorsable FPNs (no MOT for example) can be registered as a fine if they are ignored (i.e. if you don't pay or request a court hearing) at which point the court simply enforces the fine. But there is no separate offence of "non-payment of a fixed penalty". However most non-police FPNs, such as those issued by councils or rail operators do not come with any enforcement options, they are simply offered as an alternative to prosecution. Therefore if the FPN is not paid, the authority's only recourse is to prosecute the underlying offence.

Now let's look at the allegation, section 148 of the Highways Act 1980 says:

148 Penalty for depositing things or pitching booths etc. on highway.
If, without lawful authority or excuse—
(a) a person deposits on a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, or
(b) a person deposits on any highway that consists of or comprises a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, within 15 feet from the centre of that carriageway, or
(с) a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or
(d) a hawker or other itinerant trader pitches a booth, stall or stand, or encamps, on a highway.he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.

So, in order to convict Mrs H, the prosecution would need to prove beyond reasonable doubt that Mrs H has deposited the ramp on the highway. Question, how the heck are they going to prove that?

Remember this is a criminal case so Mrs H doesn't need to prove a thing, in the first instance the council needs to prove beyond reasonable doubt that Mrs H put the plank there. This means there must be no plausible explanation compatible with the evidence and which is also compatible with Mrs H being innocent. At the moment it appears extremely unlikely that the council has adequate evidence.

So in a nutshell:

If Mrs H personally placed the ramp on the road, it's still going to be a tall order to prove. This could only plausibly be done if she was witnessed doing so by a council officer who can stand up in court and say he knows Mrs H (and he would need to explain how he knows her) and saw her commit the offence. This could be overcome if the police were to get involved, arrest Mrs H to establish her identity and then use VIPER https://en.wikipedia.org/wiki/Video_Identif...ronic_Recording to get a positive ID from the council officer, but I think they have better things to do and the chances of this happening are, IMO, less than 1%. Hence even if Mrs H did personally place the ramp on the road, the chances of a conviction appear very remote.

If Mrs H did not personally place the ramp on the road, it would frankly be nuts to pay an FPN or plead guilty in relation to an offence of which she is totally innocent.

[Neil B]

Normally with FPNs any subsequent summons would be solely for non-payment.
But here that can't happen as the FPN is unlawful in the first place and should be immediately queried.

No you're mixing up FPNs with ECNs, where the offence prosecuted is non-payment of the ECN. For FPNs it epends on the powers under which the FPN is issued.

Thanks for the clarification; Southpaw too.

[Neil B]

Now let's look at the allegation, section 148 of the Highways Act 1980 says:

148 Penalty for depositing things or pitching booths etc. on highway.
If, without lawful authority or excuse—
(a) a person deposits on a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, or
(b) a person deposits on any highway that consists of or comprises a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, within 15 feet from the centre of that carriageway, or
(с) a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or
(d) a hawker or other itinerant trader pitches a booth, stall or stand, or encamps, on a highway.he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.

So, in order to convict Mrs H, the prosecution would need to prove beyond reasonable doubt that Mrs H has deposited the ramp on the highway. Question, how the heck are they going to prove that?

Remember this is a criminal case so Mrs H doesn't need to prove a thing, in the first instance the council needs to prove beyond reasonable doubt that Mrs H put the plank there. This means there must be no plausible explanation compatible with the evidence and which is also compatible with Mrs H being innocent. At the moment it appears extremely unlikely that the council has adequate evidence.

So in a nutshell:

If Mrs H personally placed the ramp on the road, it's still going to be a tall order to prove. This could only plausibly be done if she was witnessed doing so by a council officer who can stand up in court and say he knows Mrs H (and he would need to explain how he knows her) and saw her commit the offence. This could be overcome if the police were to get involved, arrest Mrs H to establish her identity and then use VIPER https://en.wikipedia.org/wiki/Video_Identif...ronic_Recording to get a positive ID from the council officer, but I think they have better things to do and the chances of this happening are, IMO, less than 1%. Hence even if Mrs H did personally place the ramp on the road, the chances of a conviction appear very remote.

If Mrs H did not personally place the ramp on the road, it would frankly be nuts to pay an FPN or plead guilty in relation to an offence of which she is totally innocent.

Sounds good. Not sure why I'm nervous; just not my area I guess.

Neither of them placed the plank. It was a contractor, as I suspected.

So first move seems to be -

In the first instance it might be worth simply writing to the council to point out that there is no statutory power to impose an FPN and see what they say.

Should she add to that she is not responsible anyway or just query the legality of the FPN?

IF a prosecution were to follow would she have to name the party responsible? (as is required for other offences in the act)

I think I've worked out that she wouldn't and why ---- but asking anyway.

[The Rookie]

Should she add to that she is not responsible anyway or just query the legality of the FPN?

IF a prosecution were to follow would she have to name the party responsible? (as is required for other offences in the act)

I think I've worked out that she wouldn't and why ---- but asking anyway.

Yes, I would add (if true of course) a statement that the person to who the FPN is addressed most certainly didn't place the plank there, (Isn't there another great comedy about a plank) and that she has no liability.

No, she doesn't need to name the person who did at all, in most cases offences don't require that ALTHOUGH for some offences there are statutory powers that can be used to force someone to name a likely offender that's not the same thing. The statutory powers have to be exercised to come into effect.

I'd also be interested in how the council bod generated a 'reasonable suspicion' against her, as to my mind the modus operandi used here didn't crate a reasonable suspicion at all, more a 'guess', but I wouldn't use this now.

[southpaw82]

She wants to think carefully before making any statement, including a denial. I’m not saying it’s the wrong thing to do but once colours are nailed to masts you’re stuck with it.

[Neil B]

She wants to think carefully before making any statement, including a denial. I’m not saying it’s the wrong thing to do but once colours are nailed to masts you’re stuck with it.

Hence why I'm nervous for her and of advising her.

I've sent them a link to the thread to read for themseleves.

--
So is a query of the FPN alone safe enough for now?